February 14, 2004

Ms. Roygene Harmon
Industrial Consultants
10470 W. Devils Den Road
Winslow, AR 72959

Dear Ms. Harmon:

Thank you for your August 25, 2003 letter to the Occupational Safety and Health Administration (OSHA) requesting guidance on the role of an Incident Commander (IC) 1910.120(q)(6)(v) and an operations level responder within 1910.120(q)(6)(ii). This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any situation not delineated within your original correspondence.

Background: Management of a few smaller ammonia refrigeration facilities have started to train personnel in emergency response in several ways. These differences have brought about questions concerning the roll of an IC. All of their ammonia systems have been designed so that shut-down can be accomplished from several areas where responding personnel would not be placed in potentially hazardous conditions. All facilities have an outside agency delineated in their Emergency Response Plan (ERP) that will act as hazardous material technicians in the event of an incident requiring an emergency response.

Scenario A: The first scenario requires all personnel to evacuate, although refrigeration maintenance operators are allowed to start the process of shut-down according to the CPL 02-02-059 [formerly CPL 2-2.59A], Appendix D, Section E.2. This procedure permits process operators to respond to an emergency situation as long as they have "informed the incident command structure," assuming the rest of the criteria in that paragraph are met.

Question 1: Do these process operators have to act under the control of an IC?

Answer: Yes. The IC must be notified expeditiously by a predetermined chain of communication. The chain of communication needs to be clearly defined in the facility emergency response plan (ERP) in the event of a release that would require an emergency response. Informing the Incident Command System (ICS) in effect places the process operators under the control of an IC. Process operators who inform the ICS of an emergency prior to performing any limited action in the danger area (e.g., shutting down processes, closing emergency valves, etc.) are limited to their responsibilities and current training levels.

Process operators who shut down processes or close valves outside the hot zone or danger area before evacuating are not under the ICS.

Question 2: Does the IC have to be physically present before defensive response steps can be taken?

Answer: The IC is not required to be present for the process operators to take limited actions (e.g., shutting down processes, closing emergency valves, etc.). The action taken by the process operators assumes the emergency response team's arrival is imminent, and the action taken is necessary to prevent the incident from increasing in severity. In addition, the ICs should not be at or near the release area, which would allow them to perform their duties without becoming too closely involved in the response effort.

Note: In several of your questions you use the term "defensive" (e.g., "defensive response steps"). Be aware that this term is typically associated with emergency responders who have been trained to the First Responders Operations Level (1910.120(q)(6)(ii)) because the primary purpose of these workers is to perform defensive actions to contain an uncontrolled release. Process operators addressed in your Scenario A are not considered "emergency responders" and, therefore, cannot perform all of the functions assigned to the First Responders Operations Level.

Question 3: Can defensive action begin if the IC's presence is imminent?

Answer: Yes. Process operators may begin limited actions (e.g., shutting down processes, closing emergency valves, etc.) prior to the IC's presence at the scene.

Question 4: Can the IC be a trained person from the facility, or must they be from the outside agency who will command the technician level responders?

Answer: ICs may be from the facility, provided they have had appropriate training in accordance with 1910.120(q)(6)(v). Control over the incident may be passed up the chain of command as more senior officials arrive or to someone from outside the facility (e.g., fire chief). In those circumstances where the facility IC relinquishes command to an outside IC, the lines of authority must be clearly defined and procedures delineated in the facility's ERP. Also, the facility must ensure, prior to any emergency response operation, that the outside IC will accept the responsibility.

Scenario B: The second scenario involves personnel who have been trained to the operations level (1910.120(q)(6)(ii)). Some of the smaller facilities have decided on training to a higher level to allow their members to be part of a team.

Question 1: Can refrigeration process operators act in accordance with the CPL in Scenario A, even though they are trained as operations level responders?

Answer: Yes. Process operators may perform duties within the scope of their responsibilities and training, even though they may also be trained to the first responder operations level. However, if the process operator takes action beyond that for which they are trained, and the action is comparable to the active role that a hazardous materials technician (offensive action within the hot zone or danger area) would take, such action would be a training violation under 1910.120(q)(6)(iii).

Question 2: Does the IC have to be physically present before defensive response steps can be taken?

Answer: See above.

Question 3: Can defensive action begin if the IC's presence is imminent?

Answer: See above.

Question 4: Can the IC be a trained person from the facility, or must they be from the outside agency who will command the technician level responders?

Answer: See above.

Question 5: Are all operations level responders required to have training on their functions within an ICS?

Answer: Yes. All first responder operations level and above trained workers must function within the facility ICS.

Question 6: Are all operations level responders required to be trained to the IC level based on the criteria of 1910.120(q)(6)(v)?

Answer: No. First responder operations level workers are not required to be trained to the level of an IC. If the worker's duties are expanded to include the functions and responsibilities of an IC, then the training requirements in 1910.120(q)(6)(v) must be provided to the worker.

We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov. If you have any further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.

Sincerely,


Richard E. Fairfax, Director
Directorate of Enforcement Programs